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Second Amendment Haze

This month, the U.S. Supreme Court is expected to decide
District of
Columbia v. Heller, the most important Second Amendment
case in the court’s history.

More than five years ago, six Washington, D.C., residents
challenged the constitutionality of the city’s 32-year ban on all
functional firearms in the home. If the challenge is successful, it
will mean the court has revisited and perhaps reversed United
States v. Miller, the second most important Second Amendment
case in the court’s history. For nearly seven decades, gun
controllers and gun rights advocates alike have struggled to apply
the murky doctrines propounded by Justice James Clark McReynolds in
his 1939 Miller opinion.

Heller presents
the Supreme Court with another opportunity to declare its
allegiance in the battles between the written and “living”
Constitutions.

Does the right to keep and bear arms belong to us as
individuals? Does that right extend to private use of arms? Or does
the Second Amendment simply authorize the states to arm the members
of their militias? The court will have to answer those threshold
questions before deciding whether the D.C. gun ban is
constitutional. Given the bizarre history of the Miller
case, its dubious analysis and inconclusive result, about the only
guidance Miller offers is how not to go about setting a Supreme
Court precedent.

In Miller, two mobsters, Jack Miller and Frank Layton,
were indicted for transporting a sawed-off shotgun across state
lines, in violation of the 1934 National Firearms Act. Neither
Miller nor Layton was charged with firing the gun or committing any
crime involving use of the gun. They were indicted for a technical
violation of the registration and tax requirements of the Act.

When the lower court held that the NFA violated the Second
Amendment, the U.S. government appealed to the Supreme Court.
There, the case took a strange turn. The court gave Miller’s
counsel, Paul Gutensohn, a mere two weeks to submit his written
brief and prepare for a grueling interrogation by the justices.
Gutensohn, who was court-appointed and had not been compensated,
replied he had received neither the government’s brief nor a copy
of the trial record. He said he wanted to file a brief, but doubted
he could travel all the way to Washington, D.C., for oral
argument.

The court then offered Gutensohn a delay until late April.
Apparently exasperated, he declined by telegram: “Suggest case be
submitted on [government’s] brief. Unable to obtain any money from
clients to be present and argue case.” Gutensohn’s proposal - that
only the government’s brief would inform the court, with no
response by the defendants - was arguably malpractice and surely
contrary to his clients’ interests. He should have asked that new
counsel be appointed and that the argument be further delayed if
necessary. That would have offered a semblance of due process to
Miller and Layton. More important, it would have ensured that the
crucial Second Amendment question would get a full briefing and
fair hearing before the court. In any event, Miller and Layton had
no written brief to support them, and no legal representation at
oral argument.

When it was all over, the Supreme Court reversed the lower
court’s holding that the NFA violated the Second Amendment. The
high court’s conclusion hinged, not on the defendants’
qualification for militia service, but on the particular weapon
that was the subject of their indictment. Here’s the crucial
passage from McReynolds’ opinion: “In the absence of any evidence
tending to show that possession or use of a [sawed-off] shotgun …
has some reasonable relationship to the preservation or efficiency
of a well-regulated militia, we cannot say that the Second
Amendment guarantees the right to keep and bear such an
instrument.” Thus, Miller applies to the type of weapon,
not to the question whether the Second Amendment protects all
individuals, only members of a militia or just states.

McReynolds’ refusal to resolve that key question triggered a
debate that lasts to this day. In the end, Miller was sent
back to the lower court to determine whether a sawed-off shotgun
had military utility. Before a new trial could be conducted, Jack
Miller was shot and killed. Frank Layton agreed to a plea bargain
and was sentenced to five years on probation.

Fortunately, Heller presents the Supreme Court with
another opportunity to declare its allegiance in the battles
between the written and “living” Constitutions. The text of the
Second Amendment clearly protects the right of “the people” - not
states, not militias, but “people” to “keep and bear arms.” By
striking down the D.C. gun ban, the Supreme Court can affirm that
basic principle and restore the Second Amendment to its rightful
place of dignity within the Bill of Rights.